No wonder the attorney in Elias v. Jensen (D4d3 Mar. 3, 2022 no. G060098) 2022 WL 620013 (nonpub. opn.) moved to withdraw: her client had “demoted [her] to co-counsel,” the client was filing documents under his own name, and the client had filed a State Bar complaint against her. So it is no wonder the Court of Appeal agreed with the trial court’s order allowing the attorney to withdraw. After all, “if Elias’s allegations against [the attorney] are true...Elias should not be represented by a conflicted attorney with whom he has a present disagreement.”
But why, then, did the Court of Appeal dismiss the appeal on nonappealability grounds, rather than just affirm on the merits?
While there are some good arguments that orders are not appealable, there are also some very good arguments that they are. Specifically, an order granting withdrawal (which is held nonappealable) is not different in kind from an order granting disqualification (which is appealable).
First, an order granting an attorney’s motion to withdraw is not listed in the general appealability statute at Code of Civil Procedure section 904.1, or in the probate appealability statutes at Probate Code sections 1300 or 1304.
So the court next looked to the collateral-order doctrine. An order may be appealable if it (1) is final, (2) is collateral to the merits of the case, and (3) “direct[s] the payment of money by appellant or the performance of an act by or against him.” (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 119.)
Here, the court held that an order granting an attorney's motion to withdraw does not direct any payment of money or the performance of any act, so it is not appealable. (Messih v. Lee Drug, Inc. (1985) 174 Cal.App.3d 312, 315 (Messih); see also Conservatorship of Rich (1996) 46 Cal.App.4th 1233, 1236 [order denying motion to substitute one attorney for another is not an appealable order].)
That was all the analysis the court furnished.
It is well-settled that orders granting attorney disqualification are appealable. “The California Supreme Court has given two reasons why such an order is appealable: First, it is an injunctive order (see Code Civ. Proc., § 904.1, subd. (a)(6)); second, it is a final order collateral to the main action.” (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 882 (citing Meehan v. Hopps (1955) 45 Cal.2d 213, 215-217).
When a court issues an order that compels the party to hire a new attorney, that is akin to an injunction, and it is also an act which satisfies the Supreme Court’s Sjoberg test for a collateral order. (Machado, supra, 148 Cal.App.4th at p. 882.)
So how can the courts maintain, with any logical consistency, that orders granting disqualification are appealable, but orders granting withdrawal are not?
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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